SOMANATHAN @ SOMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sole accused in S.C.No.954 of 2003 of the court of the Additional District and Sessions Judge, Fast Track (ADHOC No.IV), Thiruvananthapuram is the appellant as he is aggrieved by the conviction and sentence imposed against him by the judgment dated 31/01/2011 in the above case.

(2.) THE case of the prosecution is that on 11/09/2001 at about 6 p.m. the accused was found in possession of about 4 litres of spirit in a plastic can having the capacity of 5 litres along with a glass tumbler on the ridge of a stream situated about 150 meters south-east from the Mudavorrpara- Vettuvelikulam in Pallichal Village and thus the accused has committed the offence punishable under Section 55 (a) & (h) of the Abkari Act. With the above allegation Crime No.309 of 2001 was registered in the Balaramapuram Police Station for the said offence. On completing the investigation, police has prepared a report, on the basis of which S.C.No.954 of 2003 is instituted. During the trial of the case, Pws.1 to 5 were examined and Exts.P1 to P8 were recorded. Mos.1 and 2 were also identified and marked as material objects. No evidence is adduced from the side of the defence. THE trial court finally found that the prosecution has succeeded in proving its case against the accused and accordingly found that the accused has committed the offence punishable under Section 55 (a) of Abkari Act and thus he is held guilty thereunder. On such conviction, the trial court sentenced the appellant to undergo rigorous imprisonment for six months and a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months more for the offence punishable under Section 55(a) of the Abkari Act. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding order of conviction and sentence are challenged in this appeal.

(3.) EVEN though the counsel made such a request I have gone through the judgment of the trial court and the evidence and materials on record. In the trial court the main contention taken by the accused is that the evidence of the official witnesses of the prosecution is not corroborated by any independent witness and therefore the entire prosecution case cannot be believed and accepted. The defence has also taken a contention to the effect that the case was registered against him falsely at the instance of an interested abkari shop contractor. The learned counsel has also submitted that the prosecution witnesses claimed that what they have recovered from the possession of the accused/appellant is spirit but Ext.P3 chemical analysis report shows that the sample contains 49.7% ethyl alcohol. Thus the counsel submitted that the prosecution case is false to the effect that spirit was found in the possession of the appellant. It is also the contention of the counsel that even Ext.P3 cannot be believed since there is no cogent evidence to show that samples drawn from the contraband article allegedly seized from the accused and the same reached in the hands of the examiner. Therefore the counsel submits that the finding of the court below and conviction and sentence imposed on the appellant are liable to be set aside.